Citation Nr: 0306712
Decision Date: 04/08/03 Archive Date: 04/14/03
DOCKET NO. 00-06 399 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Determination of proper initial rating effective prior to
January 30, 1997, for the residuals of a right knee injury,
postoperative.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Trueba-Sessing, Counsel
INTRODUCTION
The veteran served on active duty from April 3, 1968 to
December 12, 1969.
The case initially came before the Board of Veterans' Appeals
(Board) from a May 1999 rating decision of the Department of
Veterans Affairs (VA) Regional Office in Waco, Texas. The
May 1999 rating decision awarded the veteran service
connection for the residuals of a right knee injury,
postoperative, and assigned a non-compensable disability
evaluation from May 4, 1974 to prior to January 30, 1997, and
a 10 percent disability evaluation thereafter. The May 1999
rating decision specifically notes that, as the veteran's
right knee disability was deemed to be 10 percent disabled at
the time of his entrance into the service due to his pre-
service injury, such percentage was to be deducted from any
subsequent evaluation for the right knee disability. Thus,
although the veteran's right knee disability was deemed by
the RO to be 10 percent disabling from May 4, 1979, and 20
percent disabling from January 30, 1997, the veteran was
assigned only a 0 percent rating and a 10 percent rating for
each period, respectively.
In March 2002, the Board undertook evidentiary development
with regard to the veteran's claim. After completion of the
additional development, the Board provided the veteran and
his representative notice of the development as required by
Rule of Practice 903. 67 Fed. Reg. 3,099, 3,105 (Jan. 23,
2002) (codified at 38 C.F.R. § 20.903). After giving notice
and allowing the veteran and his representative opportunity
to respond, the Board is now prepared to render a final
adjudication of the veteran's increased rating claim.
As discussed below, given that the Board has determined that
the veteran's right knee disability was 0 percent disabling
prior to his entrance into the service and has assigned a 10
percent rating for the right knee disability from May 4, 1974
to prior to January 30, 1997, the Board finds that the record
raises the issue of entitlement to an increased rating in
excess of 10 percent for January 30, 1997 and thereafter.
Accordingly, this matter is referred to the RO for
appropriate action.
FINDINGS OF FACT
1. The VA has fulfilled its duty to assist the veteran by
obtaining and fully developing all relevant evidence
necessary for the equitable disposition of the issue
addressed in this appeal.
2. Prior to his entrance into the service in April 1968, the
veteran's right knee disability was 0 percent disabling.
3. From May 4, 1979 to prior to January 30, 1997, the
residuals of a right knee injury, postoperative, more nearly
approximated a disability characterized by slight, but not
moderate or severe, recurrent subluxation or lateral
instability of the right knee. The veteran's right knee
disability was not characterized by extension limited to 15
degrees, or flexion limited to 30 degrees.
CONCLUSION OF LAW
The initial rating assigned for the veteran's residuals of a
right knee injury, postoperative, effective prior to January
30, 1997, is not appropriate, and the criteria for a 10
percent rating for such right knee disability have been met
for that period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.321, 4.1- 4.14, 4.40, 4.45, 4.59,
4.71a, Diagnostic Codes 5256, 5257, 5260, 5261 (2002); 66
Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001) (codified as
amended at 38 C.F.R.
§ 3.159).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board is satisfied that all
assistance to the appellant by VA has been provided, as
required by law regarding the issue addressed in this appeal.
On November 9, 2000, the President signed the "Veterans
Claims Assistance Act of 2000" (VCAA), 38 U.S.C.A. § 5103A
(West 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001)
(codified as amended at 38 C.F.R.
§ 3.159), which modified the circumstances under which VA's
duty to assist claimants applies, and how that duty is to be
discharged. The law affects a case such as this because the
claim was pending on the date of enactment of the new law.
This law eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the United States
Court of Appeals for Veterans Claims (Court) in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, 14 Vet. App. 174 (2000) (per curiam order), which had
held that VA cannot assist in the development of a claim that
is not well grounded. The new law also includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
In August 2001, VA issued regulations to implement the VCAA.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at
38 C.F.R. § 3.102, 3.156(a), 3.159 and 3.326(a)). The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(a) which is effective August
29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a),
the second sentence of 38 C.F.R. § 3.159(c), and
3.159(c)(4)(iii), VA stated that the provisions of this rule
merely implement the VCAA and do not provide any rights other
than those provided in the VCAA. 66 Fed. Reg. 45,620, 45,629
(August. 29, 2001). Accordingly, in general where the record
demonstrates that the statutory mandates have not been
satisfied, the regulatory provisions likewise are not
satisfied. However, in this case, for the reasons set forth
below, the VA has complied with the Veterans Claims
Assistance Act of 2000 as well as the recent implementing
regulations.
First, VA has a duty to notify the claimant and the
representative, if any, of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A. §
5103A (West 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The veteran has been
informed of the evidence needed to show his entitlement to an
increased rating for his right knee disability effective as
of May 4, 1979 to prior to January 30, 1997, via the May 1999
rating decision, the February 2000 statement of the case, and
the August 2000 supplemental statement of the case.
Specifically, the appellant has been informed of the need to
provide evidence showing that the degree of disability caused
by the service-connected right knee disability (above and
beyond his pre-service condition) for the period including
from May 4, 1979 to prior to January 30, 1997 meets the
criteria required for the award of a disability evaluation in
excess of 0 percent.
Secondly, VA has a duty to assist the claimant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A (West 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. § 3.159(c)). In this case,
all available and identified medical records have been
obtained. Pursuant to the Board's internal development, the
veteran was contacted via correspondence dated June 2002, was
informed that additional development was undertaken in his
case, and was given the opportunity to submit additional
evidence or argument in support of his claim. At the request
of the veteran, the Board attempted to obtain medical records
from Dr. Western and Dr. McKenna via correspondence dated
July 2002 and November 2002, respectively. Dr. McKenna's
records have been incorporated into the claims file, but Dr.
Western's October 2002 response indicated that the veteran
had never been seen/treated by this physician. Furthermore,
in March 2003, the veteran submitted additional arguments and
medical evidence in support of his claim. Moreover, the
veteran has been given the opportunity to present additional
evidence and/or arguments at various RO hearings in December
1980, March 1999, and July 2000, as well as during a video
conference hearing before the undersigned Veterans Law Judge
held in January 2002. And, in December 2002 and January
2003, the veteran was given the benefit of additional VA
examinations evaluating the status of his right knee
disability, and rendering a medical opinion as to the level
of severity of the right knee for the period including from
May 4, 1979 to prior to January 30, 1997. As such, the Board
finds that no additional identified evidence, which may aid
the veteran's claim or might be pertinent to the bases of the
claim, remains outstanding. Thus, the duty to assist
requirement has been satisfied. See Quartuccio v. Principi,
16 Vet. App. 183 (2002).
Finally, although the veteran has not been provided with
specific information concerning the VCAA, the present appeal
is in compliance with the requirements of the new law, as
discussed above. Under these circumstances, VA has done
everything reasonably possible to assist the veteran, and a
remand would serve no useful purpose. See Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided). VA has
satisfied its duties to notify and to assist the veteran in
this case. Further development and further expending of VA's
resources is not warranted.
In this case, in a May 1999 rating decision, the veteran was
granted service connection for the residuals of a right knee
injury, postoperative. The veteran's right knee disability
was also evaluated under Diagnostic Code 5257, and was
awarded a non-compensable disability evaluation from May 4,
1974 to prior to January 30, 1997, and a 10 percent
disability evaluation thereafter. In determining the
veteran's award, the RO indicated in the May 1999 rating
decision that the veteran's right knee disability was deemed
to be 10 percent disabled at the time of his entrance into
the service due to a pre-service injury, which was to be
deducted from any subsequent evaluation for the right knee
disability. Thus, although the veteran's right knee
disability was deemed by the RO to be 10 percent disabling
from May 4, 1979, and 20 percent disabling from January 30,
1997, the veteran was assigned only a 0 percent rating and a
10 percent rating for each period, respectively.
At present, the veteran has expressed disagreement with the
non-compensable disability evaluation assigned for his right
knee for the period including from May 4, 1974 to prior to
January 30, 1997. Hence, the Board will only evaluate the
veteran's right knee disability for the requested period of
time.
Disability evaluations are determined by evaluating the
extent to which the veteran's service-connected disabilities
affect his ability to function under the ordinary conditions
of daily life, including employment, by comparing his
symptomatology with the criteria set forth in the Schedule
for Rating Disabilities (Rating Schedule). See 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2002).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). In addition, an appeal from the initial assignment
of a disability rating requires consideration of the entire
time period involved, and contemplates "staged ratings" where
warranted. See Fenderson v. West, 12 Vet. App. 119 (1999).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. See 38 C.F.R. § 4.7 (2002).
Additionally, with respect to the musculoskeletal system, the
Court has emphasized that when assigning a disability rating,
it is necessary to consider functional loss due to flare-ups,
fatigability, incoordination, and pain on movements. See
DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); see generally
VAOPGCPREC 36-97. The rating for a disability involving the
musculoskeletal system should reflect functional limitation
which is due to pain, supported by adequate pathology, and
evidenced by the visible behavior of the claimant undertaking
the motion. Weakness is also as important as limitation of
motion, and a part which becomes painful on use must be
regarded as seriously disabled. A little used part of the
musculoskeletal system may be expected to show evidence of
disuse, either through atrophy, the condition of the skin,
absence of normal callosity, or the like. See 38 C.F.R. §
4.40 (2002). The factors of disability reside in reductions
of their normal excursion of movements in different planes.
Instability of station, disturbance of locomotion, and
interference with sitting, standing, and weight bearing are
related considerations. See 38 C.F.R. § 4.45 (2002). It is
the intention of the Rating Schedule to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimal compensable
rating for the joint. See 38 C.F.R. § 4.59 (2002).
With respect to the evidence of record, during a January 2002
video conference hearing, the veteran testified that, prior
to his service, he injured his knee as a child which resulted
in "water" in the knee joint from time to time which had to
be extracted, but not in instability or painful motion. He
was able to do exercises and run at this time. Subsequently,
during his service, he fell off the rope while rappelling and
reinjured his knee. And, at the time of his discharge from
service, he had pain and swelling, was unable to do extended
walking, and had to wrap his knee with an ACE bandage. He
further noted that all of his medical treatment following
service has been related to the in-service injury, and not to
the initial childhood injury.
The service medical records support the veteran's contentions
to the extent that the December 1967 induction examination
reveals he had normal lower extremities. A December 1967
report of medical history indicates the veteran noted
"trick" or locked knee, and the examiner indicated the
veteran reported occasional fluid accumulation to the right
knee.
The service medical records also reflect that, in June 1968,
the veteran was again examined for the right knee. At this
time, he reported he first incurred a twisting injury ("tore
the ligament") to the right knee two years prior while
jumping off a moving horse. His symptoms included pain and
swelling, which were treated with aspirin. Additionally, the
examination report indicates that six months prior (on or
about January 1968), the veteran re-injured his right knee
when he stepped into a hole while running and the knee had to
be aspirated. Upon examination in June 1968, he was seen for
re-injury of the right knee when he jumped off a rope from a
height of 15 feet and twisted his right knee. X-rays taken
in June 1968 revealed calcification of the anterior cruciate
ligament and bipartite patella. The veteran's diagnoses at
this time were recurrent right knee injury, lax medial
collateral ligament, effusion, and cannot rule out torn right
medial meniscus.
About 10 years after his discharge from service, the veteran
was seen in June 1979 by a private physician who noted a
right knee injury in 1968 with recurrent effusion and pain,
but no joint locking, for the prior four and half years. The
objective findings at this time included effusion of the
right knee, tenderness over the lateral and posterior aspects
of the joint, and tight ligaments. The diagnosis was
probable tear of the lateral cartilage.
The evidence also includes various lay statements
dated/submitted in May 1980, September 1997, November 1997
and December 1997, all tending to support the veteran's
contention that his right knee disability only began after
his in-service injury, as the symptomatology he presented
upon entering the service due to his pre-service injury was
minimal.
Medical records from W. McKenna, D.O., and the North Central
Texas Orthopaedics and Sports Medicine dated from May 1996 to
September 2002 basically described the treatment the veteran
has received over time for various orthopedic problems,
including his right knee. Specifically, notations dated
January 30, 1997 reveal the veteran was seen for right knee
pain with locking, popping and increasing pain over the past
two weeks, although some of the knee pain was deemed due to
the nature of his work. The objective findings include
significant tenderness over the posterior capsule over the
medial side, swelling palpable into the popliteal space, some
McMurray sign with clicking and popping, and 5 to 10 degrees
of limitation of full extension and painful flexion. X-rays
revealed flabella at the back of the knee, radiodense loose
bodies within the knee, collapsed lateral joint space, and
significant degenerative changes. It was noted that the
veteran had presented these findings for many years, and his
acute problems at this time was actually overlying on top of
that.
Dr. McKenna's records also include a February 1997 medical
statement indicating the veteran underwent surgery of the
right knee to remove portions of free floating cartilage of
the right knee. A magnetic resonance imaging (MRI) taken at
this time revealed diagnoses of severe degenerative changes
of the lateral compartment of the knee with lesser
degenerative changes of the medial and patellofemoral
compartments, abnormally horizontal low signal intensity
fibers present in the vicinity of the anterior cruciate
ligament (ACL) which appeared largely torn, and complex tears
of the posterior horn/mid body of the medial meniscus. And,
March 1997 notations show the veteran complained of right
knee pain post surgery, but had full range of motion of the
right knee with good strength and no longer catching
sensation.
A January 2000 VA examination report indicates the veteran
was diagnosed with arthritis of the right knee with severe
pain and limitation of motion. The knee's range of motion
was limited to 20 degrees of extension and 90 degrees of
flexion, had incoordination upon walking and it occasionally
would give way. The veteran also presented some muscular
weakness, flare-ups, catching and giving way which in turn
interfered with the veteran's ability to work.
At the request of the Board, the veteran was examined in
December 2002. The December 2002 VA examination report
reveals the veteran injured his right knee when he was 8 or
10 years old, again on or about January 1968, and a third
time in June 1968 while in boot camp. The examiner indicated
that, even though it was clearly documented that the veteran
injured his knee prior to enlistment, subluxation, lateral
instability or dislocated semilunar cartilage was not
specifically incriminated or proven prior to service. The
examiner further noted that these findings were based on
examination of the veteran and a review of the prior medical
records and history. As well, the examiner noted that a June
1979 private doctor's statement indicated right knee
tenderness with effusion and probable tear in the lateral
collateral ligament, and noted lateral instability but no
further description of such was made. More importantly, it
was the examiner's opinion that there was no evidence of
subluxation, lateral dislocation or documentation of a
semilunar cartilage injury prior to service. The examiner's
impressions included: status post re-injury in boot camp in a
fall from a rope and recurrent problems following the boot
camp injury which did not prevent him from serving in Vietnam
for 14 months, a non-medical discharge with a negative
separation examination, and a February 1997 MRI revealing
several degenerative joint disease and arthroscopic procedure
that same month.
Lastly, the January 2003 VA examination report reveals
diagnoses of degenerative and traumatic arthritis of the
right knee with status postoperative repair in 1994 and
continued knee pain, decreased range of motion, and moderate
disability, progressive.
Turning now to the applicable criteria for evaluating the
veteran's right knee disability, Diagnostic Code 5257
provides the following evaluations for knee disabilities
involving recurrent subluxation or lateral instability: 10
percent for slight; 20 percent for moderate; and 30 percent
(the maximum allowed) for severe impairment. See 38 C.F.R. §
4.71a, Diagnostic Code 5257 (2002). Since Diagnostic Code
5257 is not predicated on loss of range of motion, §§ 4.40
and 4.45 with respect to pain do not apply. Johnson v.
Brown, 9 Vet. App. 7, 11 (1996).
The General Counsel for VA, in a precedent opinion dated July
1, 1997, (VAOPGCPREC 23-97) held that a claimant who has
arthritis and instability of the knee may be rated separately
under Diagnostic Codes 5003 and 5257. When the knee disorder
is already rated under Diagnostic Code 5257, the veteran must
also have limitation of motion which at least meets the
criteria for a zero-percent rating under Diagnostic Code 5260
(flexion limited to 60 degrees or less) or 5261 (extension
limited to 5 degrees or more) in order to obtain a separate
rating for arthritis. If the veteran does not at least meet
the criteria for a zero percent rating under either of those
codes, there is no additional disability for which a rating
may be assigned. Additionally, the General Counsel in
VAOPGCPREC 9-98 held that a separate rating for arthritis
could also be based on x-ray findings and painful motion
under 38 C.F.R. § 4.59. See also Degmetich v. Brown, 104 F.
3d 1328, 1331 (Fed Cir 1997). Where additional disability is
shown, a veteran rated under Diagnostic Code 5257 can also be
compensated under 5003 and vice versa.
In this respect, traumatic arthritis rated under Diagnostic
Code 5010, established by x-ray findings, will be rated on
the basis of degenerative arthritis (under Diagnostic Code
5003) which in turn is rated as limitation of motion under
the appropriate diagnostic codes for the specific joint or
joints involved. When, however, the limitation of motion of
the specific joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 percent is
for application for each joint or group of minor joints
affected by limitation of motion, to be combined, not added
under Diagnostic Code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In the
absence of limitation of motion rate as below: with x-ray
evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, with occasional incapacitating
exacerbations a 20 percent evaluation is assigned (the
maximum allowed). With x- rays evidence of involvement of 2
or more major joints or 2 or more minor joint groups a 10
percent evaluation is assigned. 38 C.F.R. § 4.71a,
Diagnostic Codes 5003, 5010 (2002).
Under Diagnostic Code 5260, a noncompensable (zero percent)
disability evaluation is assigned where there is limitation
of leg flexion to 60 degrees. A 10 percent disability
evaluation is awarded where there is limitation of leg
flexion to 45 degrees. A 20 percent disability evaluation is
in order with limitation of leg flexion to 30 degrees. And, a
30 percent disability evaluation is appropriate with
limitation of leg flexion to 15 degrees. See 38 C.F.R. §
4.71a, Diagnostic Code 5260 (2002).
Under Diagnostic Code 5261, a noncompensable (zero percent)
disability evaluation is assigned where there is limitation
of leg extension to 5 degrees. A 10 percent disability
evaluation requires limitation of leg extension to 10
degrees. A 20 percent disability evaluation is appropriate
with limitation of leg extension to 15 degrees. A 30 percent
disability evaluation is in order where there is limitation
of leg extension to 20 degrees. A 40 percent disability
evaluation is assigned where there is limitation of leg
extension to 30 degrees. And, a 50 percent evaluation is
assigned where there is limitation of leg extension to 45
degrees. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5261 (2002).
Upon a review of the record, the Board finds that, contrary
to the RO's findings in the May 1999 rating decision, the
preponderance of the evidence shows that the veteran's right
knee disability was 0 percent disabling prior to his entrance
into the service (as opposed to being 10 percent disabling
prior to his entrance into the service). Specifically, the
Board notes that the December 2002 VA examination report
discussed above indicates that it was the examiner's opinion
that there was no evidence of right knee subluxation, lateral
dislocation or documentation of a semilunar cartilage injury
prior to the veteran's service.
Additionally, the Board finds that the medical evidence
supports the award of a 10 percent initial disability
evaluation for the veteran's residuals of a right knee
injury, postoperative, effective prior to January 30, 1997,
under Diagnostic Code 5257. See 38 C.F.R. § 4.71a,
Diagnostic Code 5257 (2002). Specifically, the Board finds
that the June 1968 service medical notations indicate the
veteran's diagnoses at this time were recurrent right knee
injury, lax medial collateral ligament, effusion, and cannot
rule out torn right medial meniscus. The Board acknowledges
that the medical evidence for the period of May 1979 to
January 1997 is scarce as it mainly comprises a June 1979
private doctor statement with findings of effusion,
tenderness and tight ligaments of the knee. However, the
Board also finds that the application of the reasonable doubt
doctrine is warranted in this case. When the evidence is in
relative equipoise as to the merits of an issue, the benefit
of the doubt in resolving the issue is to be given to the
appellant. As such, the Board finds that the veteran's right
knee disability for the period prior to January 30, 1997 more
nearly approximated a disability characterized by slight, but
not moderate or severe, recurrent subluxation or lateral
instability of the right knee. The criteria for a 10 percent
disability evaluation effective prior to January 30, 1997,
for the residuals of a right knee injury, postoperative, has
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §
4.71a, Diagnostic Code 5257.
The Board has also considered whether the veteran's right
knee disability should be rated under alternative Diagnostic
Codes which could result in a rating higher than 10 percent
for the relevant period. See Butts v. Brown, 5 Vet. App. 532
(1993). Under Diagnostic Code 5260, a noncompensable (zero
percent) disability evaluation is assigned where there is
limitation of leg flexion to 60 degrees. A 10 percent
disability evaluation is awarded where there is limitation of
leg flexion to 45 degrees. A 20 percent disability
evaluation is in order with limitation of leg flexion to 30
degrees. And, a 30 percent disability evaluation is
appropriate with limitation of leg flexion to 15 degrees.
See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2002).
Under Diagnostic Code 5261, a noncompensable (zero percent)
disability evaluation is assigned where there is limitation
of leg extension to 5 degrees. A 10 percent disability
evaluation requires limitation of leg extension to 10
degrees. A 20 percent disability evaluation is appropriate
with limitation of leg extension to 15 degrees. A 30 percent
disability evaluation is in order where there is limitation
of leg extension to 20 degrees. A 40 percent disability
evaluation is assigned where there is limitation of leg
extension to 30 degrees. And, a 50 percent evaluation is
assigned where there is limitation of leg extension to 45
degrees. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5261 (2002).
In this respect, as previously noted, the Board acknowledges
that the medical evidence for the period of May 1979 to
January 1997 is scarce. The best evidence available
regarding the veteran's range of motion of the right knee is
found in the January 30, 1997 statement from Dr. McKenna,
D.O., and the North Central Texas Orthopaedics and Sports
Medicine, which shows objective findings of significant
tenderness over the posterior capsule over the medial side,
swelling palpable into the popliteal space, some McMurray
sign with clicking and popping, and 5 to 10 degrees of
limitation of full extension and painful flexion.
Evaluating the veteran's right knee disability under
Diagnostic Code 5261, the Board finds that an increased
rating in excess of 10 percent is not warranted under this
Diagnostic Code as the veteran's right knee extension was not
limited to 15 degrees. As well, evaluating the right knee
under Diagnostic Code 5260, an increased rating in excess of
10 percent is not warranted as the veteran's right knee
disability was not characterized by limitation of leg flexion
to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260,
5261 (2002).
In addition, the Board has also considered the provisions of
38 C.F.R. §§ 4.40, 4.45, and 4.59. In this respect, the
Board does not doubt the presence of pain in the veteran's
right knee, including pain on motion, during the period
including from May 1979 to January 1997. However, as
discussed above, the evidence does not show that the
veteran's right knee disability was characterized by
limitation of motion which approached that required by either
Diagnostic Code 5260 or Diagnostic Code 5261 for a higher
evaluation. As a matter of fact, the objective evidence of
record does not reflect any additional functional limitation
due to pain/weakness sustained by the veteran from May 1979
to January 1997, other than the functional limitation already
considered under the assigned 10 percent rating. And, it is
clear that the law requires that such additional functional
limitation be supported by adequate pathology and evidenced
by the visible behavior of the claimant undertaking the
motion, such not being the case here. See 38 C.F.R.
§ 4.40 (2002).
The Board has considered whether the veteran's right knee
disorder should be assigned a rating for arthritis separate
from the 10 percent rating assigned for the residuals of a
right knee injury, as allowed under VAOPGCPREC 23-97 and
VAOPGCPREC 9-98. In this respect, the Board acknowledges
that, in a February 2000 rating decision, the RO determined
that the veteran's right knee disability warranted the award
of service connection and a separate 10 percent rating for
degenerative joint disease of the right knee, under
Diagnostic Code 5010, effective January 30, 1997. As such,
the award of yet another separate disability evaluation for
arthritis of the right knee effective as of January 30, 1997
would result in pyramiding, contrary to the provisions of 38
C.F.R. § 4.14. The evaluation of the same "disability" or
the same "manifestations" under various diagnoses is
prohibited. 38 C.F.R. § 4.14 (2002). The Court has held
that a claimant may not be compensated twice for the same
symptomatology as "such a result would overcompensate the
claimant for the actual impairment of his earning capacity."
Brady v. Brown, 4 Vet. App. 203, 206 (1993). Furthermore,
with respect to the assignment of a separate disability
evaluation for arthritis of the right knee prior to January
30, 1997, the Board finds that the medical evidence of record
simply does not show that the veteran's right knee was
diagnosed with arthritis prior to that date. Hence, the
award of a separate 10 percent rating for arthritis of the
right knee prior to January 30, 1997 is not warranted.
For the foregoing reasons, the Board finds that the medical
evidence shows that the veteran's right knee disability was 0
percent disabling prior to his entrance into the service (as
opposed to being 10 percent disabling prior to his entrance
into the service). Additionally, the Board finds that the
medical evidence supports the award of a 10 percent
disability evaluation for the veteran's residuals of a right
knee injury, postoperative, effective prior to January 30,
1997, under Diagnostic Code 5257. The veteran's claim for an
increased initial rating in excess of 0 percent is granted to
this extent only. See 38 C.F.R. § 4.71a, Diagnostic Code
5257 (2002). See 38 U.S.C.A. §§ 5103A, 5107(b); 66 Fed. Reg.
45630-45632 (Aug. 29, 2001) (codified as amended at 38 C.F.R.
§ 3.159); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Lastly, the potential application of various provisions of
Title 38 of the Code of Federal Regulations (2002) have been
considered whether or not they were raised by the appellant
as required by the Court's holding in Schafrath v. Derwinski,
1 Vet. App. 589, 593 (1991). The Board has considered
whether an extra-schedular evaluation pursuant to the
provisions of 38 C.F.R. § 3.321(b)(1) (2002) is warranted.
In the instant case, however, there has been no showing that
the veteran's right knee disability (for the period including
from May 1979 to January 1997) has caused marked interference
with employment (i.e., beyond that contemplated in the
currently assigned evaluation) or the need for frequent
periods of hospitalization, or has otherwise rendered
impracticable the application of the regular schedular
standards. Specifically, the Board finds that the medical
evidence of record simply does not show that the veteran's
disability, per se, is productive of marked interference with
employment. In this respect, the law is clear that only
those with specialized medical knowledge, training, or
experience are competent to provide evidence on these issues.
See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1991).
To the extent that the claimant may experience functional
impairment due to the service-connected right knee
disability, the Board finds that such impairment is
contemplated in the currently assigned rating. And, in this
case, the evidence does not show, and the veteran does not
contend, that the right knee disability at issue, alone, was
productive of marked interference with employment prior to
January 1997. In essence, the Board finds no evidence of an
exceptional or unusual disability picture in this case which
renders impracticable the application of the regular
schedular standards.
With respect to the disabilities at issue, the applicable
rating criteria contemplate higher ratings. However, the
Board has not found the disability under consideration to be
of such severity as to warrant assignment of a higher rating
on a schedular basis than that indicated above. Likewise
then, referral for consideration for extra-schedular
evaluations is not warranted here. See Bagwell v. Brown, 9
Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
ORDER
The initial rating assigned for the veteran's residuals of a
right knee injury, postoperative, effective prior to January
30, 1997 is not appropriate, and a 10 percent disability
evaluation is granted, subject to provisions governing the
payment of monetary benefits.
REMAND
In a February 2000 rating decision, the RO granted the
veteran service connection and a 10 percent rating for
degenerative joint disease of the right knee, effective
January 30, 1997, under Diagnostic Code 5010. In March 2000,
the veteran submitted a statement indicating disagreement
with the March 2000 award of a 10 percent rating for
arthritis. A statement of the case has not been issued with
respect to the issue of entitlement to an increased initial
rating in excess of 10 percent for degenerative joint disease
of the right knee. Where there is a notice of disagreement,
a remand, not referral, is required by the Board. Manlincon
v. West, 12 Vet. App. 238 (1999).
In light of the above, the appeal is REMANDED to the RO for
the following:
The RO should issue a statement of the
case addressing the issue of entitlement
to an increased initial rating in excess
of 10 percent for degenerative joint
disease of the right knee. The veteran
should be apprised of his right to submit
a substantive appeal and to have his
claim reviewed by the Board. The RO
should allow the veteran and his
accredited representative the requisite
period of time for a response.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. In
taking this action, the Board implies no conclusion, either
legal or factual, as to the ultimate outcome warranted.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
In the section entitled "Representation before VA," filing
a "Notice of Disagreement with respect to the claim on or
after November 18, 1988" is no longer a condition for an
attorney-at-law or a VA accredited agent to charge you a fee
for representing you.